Minnesota Department of Administration Advisory Opinion 94-057

This is an opinion of the Commissioner of Administration issued pursuant to section 13.072 of Minnesota Statutes, Chapter 13 - the Minnesota Government Data Practices Act. It is based on the facts and information available to the Commissioner as described below.

Facts and Procedural History:

For purposes of simplification, the information presented by the citizen who requested this opinion and the response from the government entity with which the citizen disagrees are presented in summary form. Copies of the complete submissions are on file at the offices of PIPA and are available for public inspection.

On November 17, 1994, PIPA received a letter from Mr. Stephen Boe, dated November 15, 1994, in which he described his attempts to gain access to certain data maintained by the Department of Natural Resources, hereinafter "Department."

Beginning in June, 1994, and continuing into October, 1994, Mr. Boe attempted to gain access to and copies of data concerning Cass Lake muskellunge. Department personnel told him that he was free to view or copy the requested data, but that the Department copyrighted all the data he requested, and therefore any use, other than personal, was regulated by the terms of the copyright. In addition, the Department told him that all photocopies and notes he made must carry the Department's copyright statement. Mr. Boe objected to having these conditions placed upon his access to the data, and asked the Department to provide him, in writing, with the legal basis upon which it relied to impose such limitations.

On August 22, 1994, Mr. Boe wrote to Mr. Rodney Sando, Commissioner of the Department, to ask for a ruling on the Department's response to his data request. Mr. Sando, in his written reply to Mr. Boe, stated that it was the Department's position that the data in question were copyrighted, and that all copies or notes made by or for Mr. Boe were to carry the Department's copyright stamp. Mr. Boe then requested an opinion of the Commissioner on the issue stated in the "Issue" section below.

In response to this request, PIPA, on behalf of the Commissioner, wrote to Commissioner Sando. The purposes of this letter were to inform Mr. Sando of Mr. Boe's opinion request, to provide a copy of the request to him, to ask Mr. Sando or the Department's attorney to provide information or support for the Department's position, and to inform him of the date by which the Commissioner was required to issue this opinion.

On December 2, 1994, PIPA received a response letter from Commissioner Sando. In his response, Mr. Sando stated that it is the Department's position that it is in full compliance with Minnesota Statutes Chapter 13, the Minnesota Government Data Practices Act ("Act" or "MGDPA"), regarding Mr. Boe's request. He stated that the Department gave Mr. Boe access to all the data he requested, that Mr. Boe took notes on the data he reviewed, and that Mr. Boe refused the Department's offer to provide him copies of the data, because the copies carried the Department's copyright notice. He also stated that the Department informed Mr. Boe that he may not publish or otherwise use the data for purposes other than personal ones unless he obtains a license from the Department. He said that "[t]he Department grants licenses to the public on a regular basis, normally without charge."

Mr. Sando based his assertion of intellectual property rights for the data under Title 17, United States Code, the Copyright Act of 1976.

Issue:

Is the position of the Department of Natural Resources that it can limit Mr. Boe's use of public data in compliance with the Minnesota Government Data Practices Act?

Discussion:

The legislature has implemented fundamental information policy principles in the MGDPA. It has determined that, unless otherwise classified by statute, federal law, or temporary classification, government data are public, and that generally, no restrictions may be imposed upon the public's use of public government data. (See Minnesota Statutes Section 13.03, subdivision 1, and Minnesota Rules, Section 1205.0300, subpart 2.)

However, in provisions of the Act and in other statutes, the Minnesota legislature has addressed the reality that in some instances government data may have commercial or other value, and that taxpayers in general ought to benefit from the value of government information and data. In a variety of instances the legislature has made both general and specific policy that is intended to give entities the authority to tap the value that may be inherent in government data.

As a matter of general policy, the legislature, in 1984, amended Minnesota Statutes Section 13.03, subdivision 3, to authorize responsible authorities to charge a reasonable fee, in addition to the costs of making, certifying, and compiling copies, when a request for data under this subdivision "...involves any person's receipt of copies of public government data that has commercial value and is an entire formula, pattern, compilation, program, device, method, technique, process, database, or system developed with a significant expenditure of public funds by the agency,...." The agency must be able to demonstrate clearly the relationship of the fee to the actual development costs of the information. (Laws of Minnesota for 1984, Chapter 436, Section 2.)

In certain instances, the legislature has authorized government agencies to sell data or to seek copyright or patent protection for certain types of government data. In Minnesota Statutes Section 16B.51, the Department of Administration is authorized to sell certain data. Government entities can also seek patent or copyright protection for computer software programs or components of software programs. (See Minnesota Statutes Section 13.03, subdivision 5.) In the instance of projects supported by the Minnesota Environment and Natural Resources Trust Fund (and two other funds), the legislature has said that: "[t]he fund owns and shall take title to the percentage of a royalty, copyright, or patent resulting from a project supported by the fund equal to the percentage of the project's total funding provided by the fund...." (Minnesota Statutes Section 116P.10.)

The history of specific legislative authorizations to sell data or claim intellectual property rights indicates a legislative position that government entities do not have general authorization to make claims of intellectual property rights over public government data. If all government entities could claim intellectual property rights in their public data, then there would be no need for such specific authorizations to do so. In fact, during the 1984 session, Hennepin County proposed general legislative authorization that would have allowed government entities to acquire a copyright or patent for any government data created by their agencies. The legislature rejected such a broad approach, and instead enacted the language in Minnesota Statutes Section 13.03, subdivision 5, that authorizes agencies to seek protection for computer software programs or components of programs.

In 1994, the legislature again considered and rejected an amendment to Minnesota Statutes Section 13.03, subdivision 5, which proposed that state agencies and political subdivisions be authorized to acquire copyright or other protection for intellectual property in any government data developed or acquired by the entity. The proposed legislation defined "intellectual property" to mean "...an idea, datum, artistic or other tangible expression, innovation, invention, process, or product, or any other meaning as defined by state or federal copyright, patent, or trademark laws...." (See A-1 amendment, SF 2076, 3-9-94.)

After rejecting this language, the only action taken by the legislature in 1994 concerning intellectual property was the creation of the following new section in Minnesota Statutes Chapter 16 B:

Sec. 33 [16B.483] INTELLECTUAL PROPERTY.

Before executing a contract or license agreement involving intellectual property developed or acquired by the state, a state agency shall seek review and comment from the attorney general on the terms and conditions of the contract or agreement. (Ch. 632, Art. 3, Sec. 33, Laws of Minnesota for 1994.)

Given the previous history of legislative consideration of copyright and other forms of intellectual property claims for government data, this language does not appear to be sufficient evidence of legislative intent to allow any government entity in this state to claim copyright or other forms of intellectual property protection for any public government data.

Commissioner Sando stated that the Department relied upon Title 17, United States Code, as its authority to claim copyright protection for the data in question. It is the case that Title 17 U.S.C. does not exclude state governments and agencies from claiming copyright protection, but it also does not provide for it. (Federal copyright law does not allow federal government agencies to claim copyright protection for federal data.)

There is no indication in legislative history that the legislature intends that any government entity can claim and enforce intellectual property rights in its public government data, and thereby severely limit public use of public data. As noted above, a fundamental principle of the MGDPA is that anyone may use public data, for any purpose. It would contravene this principle to find that such a general authority resides in agencies. These reasons, as well as the devastating impact that intellectual property claims may have on public access to and use of public government data, lead to the conclusion that the Department's position is not appropriate.

The legislature, through the enactment of the MGDPA, and as evidenced by subsequent actions, has for 20 years retained the authority to classify data. It removed such discretion from government entities. If the Department's assertion that it can control the use of public government data were to be upheld, the Department would, in effect, be exercising its own discretion over public access to and use of public data. The information policy principles embedded in the MGDPA, (the presumption of openness of government data, and the absence of limitations upon the use of public government data) would then be circumvented.

The Department, and other government entities, in appropriate circumstances, may charge an add-on fee as is authorized in the Act. This enables entities to recover development costs for data which have commercial value, without imposing upon the public the financial and other costs of intellectual property claims.

Opinion:

Based on the correspondence provided in this matter, my opinion on the issue raised by Mr. Boe is as follows:

The position of the Department of Natural Resources that it can limit Mr. Boe's use of public data, is not in compliance with the presumption of the Minnesota Government Data Practices Act, that, unless clearly specified by the legislature, the public's right of access to and use of public government data cannot be curtailed by a government entity's claim of intellectual property rights in those data.